No. 3--00--0634

_________________________________________________________________

							IN THE

							APPELLATE COURT OF ILLINOIS

							THIRD DISTRICT

							A.D., 2001 

THE PEOPLE OF THE STATE 			)	Appeal from the Circuit Court

OF ILLINOIS,					)	of the 10th Judicial Circuit,

							)	Peoria County, Illinois

	Plaintiff-Appellee,			)	

							)

	v.						)	No. 88--CF--605

							)	

LUTHER JONES,					)	Honorable

                                )	Donald Courson

	Defendant-Appellant.		)	Judge, Presiding

_________________________________________________________________

JUSTICE HOLDRIDGE DELIVERS deliversed the opinion of the court:

_________________________________________________________________

	The defendant, Luther Jones, was convicted of possession

with the intent to distribute cocaine.  Ill. Rev. Stat. 1983,

ch. 561⁄2, par. 1401(b)(2).  His conviction and sentence were

affirmed on direct appeal.  People v. Jones, 215 Ill. App. 3d 652, 575 N.E.2d 561 (1991).  The defendant filed a petition under

section 2--1401 of the Code of Civil Procedure (735 ILCS 5/2--

1401 (West 1998)) alleging that his conviction should be over

turned because his attorney was ineffective and he was not proven

guilty beyond a reasonable doubt because of a break in the chain

of custody of the evidence in his case casts doubt upon his conviction.  The circuit court dismissed his

petition.  We affirm.

	This case has a long and litigious history.  The defendant

was convicted in 1989 of possession with the intent to deliver

less than 15 grams of cocaine.  At his bench trial, the State’s evidence included a bag of 49 individually wrapped packets of

cocaine.  A police officer testified that he saw the defendant

drop these packets while he was pursuing the defendant.  The

State also presented evidence that when the defendant was pro

cessed for intake into the county jail, he had $1,000.06 on his

person.  The money was not available as evidence at trial.

	The defendant attempted to take the stand, but he refused to

either swear or affirm that his testimony would be truthful. 

After a recess and a discussion with his counsel, the defendant

did not testify.  In closing, defense counsel argued that it was

not reasonable to infer that the money found on the defendant

when he was arrested was drug proceeds.  The defendant was

convicted of possession with the intent to distribute cocaine. 

He was sentenced to an extended term of 30 years’ imprisonment

based on his lengthy criminal record.  

	In his direct appeal, the defendant alleged that (1) the

State did not present sufficient evidence that he possessed or

intended to deliver cocaine; (2) his speedy trial rights were

violated; and (3) the trial court erroneously denied his pretrial

motion to quash his arrest.  His conviction was affirmed.  Jones, 215 Ill. App. 3d 652, 575 N.E.2d 561.

	In May 1996, the defendant filed a "Petition for Post

Judgement Relief" under section 2--1401 of the Code of Civil

Procedure.  The petition alleged that the circuit court lacked

jurisdiction to sentence the defendant to an extended term

because the defendant was not provided notice by the State that it intended to seek an extended term.  This petition was dis

missed and the defendant appealed.  This court affirmed the

dismissal.  People v. Jones, No. 3--96--877 (1997) (unpublished order under Supreme Court Rule 23).

	In April 2000, the defendant filed the instant action under

section 2--1401 of the Code of Civil Procedure.  He asserted that

his trial counsel was ineffective for failing to present evidence

that the money was not part of a drug selling scheme, but rather

was left over from a trip he was ending.  He also alleged that he

was not proven guilty beyond a reasonable doubt because of a

break in the chain of custody involving both the cocaine and the

money he possessed.  The trial court dismissed this petition,

stating that all the matters contained in it had already been

decided in previous post-conviction petitions.  The defendant

appeals this dismissal.1

	The denial of a section 2--1401 petition will not be re

versed absent an abuse of discretion by the trial court. 

Kulikowski v. Larson, 305 Ill. App. 3d 110, 710 N.E.2d 1275 (1999).

	A convicted defendant may file a section 2--1401 petition to

present errors of fact, unknown to the petitioner or the court at the time of trial, that would have caused the court to render a

different decision.  People v. Mahaffey, 194 Ill. 2d 154, 742 N.E.2d 251 (2000).  Section 2--1401 establishes a process by

which a litigant may appeal a judicial order more than 30 days

after its entry.  735 ILCS 5/2--1401 (West 1998).  However, if

more than two years have passed since the entry of the complained

of order, section 2--1401 relief is not available unless the

petitioner can show that the delay was caused by a legal disabil

ity or duress, or that the basis for relief had been fraudulently

concealed from the petitioner.  People v. Caballero, 179 Ill. 2d 205, 688 N.E.2d 658 (1997).

	The defendant was convicted in 1989.  His conviction and

sentence were affirmed on direct appeal in 1991.  He has not

alleged any fact to show that his failure to file his section 2--

1401 petition was caused by a legal disability.  Furthermore,

both the alleged ineffectiveness of his trial counsel and the

facts regarding the chain of custody of the drugs and money were

available in the record at trial.  He has presented no evidence

that his failure to file a timely section 2--1401 petition was

due to the fraudulent concealment of information.

	In closing, we note that there is no evidence in the record

that the Peoria police department has complied with the circuit

court’s order to return $1,000 to the defendant.  We make no

decision in this cause that would prevent the defendant from

filing a contempt action against the police department for the

return of his money.

	The decision of the circuit court of Peoria County is

affirmed.

	Affirmed.

	hHomerOMER, P.J., AND and MCDADE, J., concur.